Friday, December 31, 2004

Since folks all over the South, the Grits household included, will be serving ham, black-eyed peas and collard greens tomorrow to bring luck in the new year, it's fitting that one of my favorite Alabama belles, Loretta Nall, brings us this wonderful missive on "How to shoot a pig," with examples from recent media. That's the funniest thing I've read on the web in a long time.

CrimProf blog points to an MSNBC report that says 154 U.S. police officers died in the line of duty in 2004, half in traffic accidents, and one-third in shootings.

Police officers' jobs are dangerous, but not that much more so than other common jobs. A few years ago I compiled a partial list of jobs more dangerous than a police officer from the 2000 Census of Fatal Occupational Injuries. They include obviously dangerous jobs like miners, but also jobs you wouldn't think of like truck drivers, groundskeepers, fishermen, construction workers, and airplane pilots. That's right -- the groundskeeper trimming trees in the city park statistically has a more dangerous job than the local cop. Actually, cutting trees is dangerous business. It's ten times more dangerous to be a lumberjack than a police officer.

"the insanity defense is used in 1 percent of felony cases and is seldom successful. The committee said 26 percent of those who claim insanity are deemed insane and acquitted.

"Insanity statutes were stiffened by many states and the federal government after John Hinckley's acquittal by reason of insanity for shooting and wounding President Reagan in 1981.

"The committee said that the nation "grew impatient" with the insanity defense and that more than 30 states, including Texas, tightened and amended their statutes. Five states -- Idaho, Kansas, Montana, Nevada and Utah -- abolished the defense, according to the report.

"'The idea that many people are saying they are insane and getting away with their crimes is silly,' said David Haynes, a lawyer representing Dena Schlosser, charged with capital murder last month for allegedly cutting off the arms of her 10-month-old daughter in Plano. 'That just doesn't happen,' said Haynes."Even if one is declared not guilty by reason of insanity, that doesn't get them set free. The article notes that, once a person has been declared insane in Texas, they must be held for 30 days in custody, then a judge evaluates them annually to determine if they're ready to be released. In Dallas, such an inmate was left alone in a jail cell for two weeks without food or water while waiting for an annual judge's determination; that man has been held for 26 years in a state hospital without ever being convicted.

The Austin Chronicle's Jordan Smith has a good piece about Williamson County District Attorney John Bradley's failed attempts to override the confidentiality of attorney work product in a child abuse case. Bradley tried to force a defense lawyer to testify about his work product, in particular a witness statement he'd taken that could exonerate his client. The lawyer stood up to the DA and won.

Williamson County's justice system has a reputation as one of the most ruthless in Texas, both in terms of prosecutorial aggression and issuing extremely long sentences to those convicted. This case gives some insight into how the Williamson DA uses, some would say abuses his power, aiming to secure convictions, even against potentially innocent people, at nearly any cost. If Bradley's office had won the motion, Williamson defense attorneys would have been in a position where they could no longer interview witnesses in their cases without permission from the DA.

Thursday, December 30, 2004

More evidence the proliferation of police cameras isn't really about traffic enforcement: Dallas PD is installing surveillance cameras in the Deep Ellum area, the Austin Statesman reported, not for any traffic purpose but "to provide real-time video images [and] to provide a history of what happened."

Disturbingly, this is a public-private venture, and DPD has announced that area "businesses and police will share the footage via the Internet." That's spooky. A private surveillance company donated equipment to get the project off the ground.Unfortunately, an amendment by Texas state Sen. Jeff Wentworth, R-San Antonio, to homeland security legislation in 2003 made secret all information about where police conduct video surveillance and what they do with the data. So legally, Dallas PD can give the video to whomever they want, thanks to Sen. Wentworth, and the public could never know.

That's a bad idea, though. Police shouldn't share surveillance data with private entities, much less transmit that data blithely over the Internet, but that's what happening in Dallas. Once private businesses get the tapes, they can do what they want with them. It really doesn't seem like Chief Kunkle has thought the whole thing through.

In other words, if young women celebrating Mardi Gras in Deep Ellum decide to flash the crowd, the videotape could be sold for use on Girls Gone Wild. They might even get some good shots. After all, the donor company touts its system's zoom and tracking capabilities. A British study found that one out of ten women were targeted by male surveillance camera operators for voyeuristic purposes, and steamy excerpts from British police surveillance tapes have wound up in the hands of B filmmakers, who profiteered off of them. Grits mentioned several documented examples of abuses regarding police surveillance footage in this post.

Camera surveillance by municipal police in Texas is growing rapidly, with no evidence to show that it has improved traffic safety or reduced crime. Austin already has hundreds of surveillance cameras around town, with no plans to use them for traffic enforcement or anything but police surveillance. Houston's city council just voted to install traffic enforcement cameras at 50 intersections. (Unlike in Houston, the police union in San Antonio has fought off the idea so far.) Now Dallas police are installing new surveillance cameras and sharing surveillance data with private businesses.

The widespread proliferation of surveillance cameras is only one leg of the surveillance stool -- Sen. Wentworth's amendment making all information about surveillance cameras secret laid the groundwork for that proliferation, and if the Texas Department of Public Safety and the House Defense Affairs Committee are successful, this legislative session Texas could require all drivers and ID card holders to give up biometric "facial recognition" measurements that would let the state identify individuals from video by name.

Wednesday, December 29, 2004

The stuff we can think of to criminalize in this country just blows me away. Missouri just moved to legalize bare-handed fishing. My question: What genius decided to make it illegal in the first place? Have you ever tried to catch a fish with your hands?

Telling fisherman they can't catch but X number of fish per day is a reasonable conservation measure. But the government telling fishermen whether to fish with a hook and line or their bare hands is the kind of law that indicates some legislators have too much time on their hands.

Texas' Legislature meets just 4-1/2 months every two years, and in 78 biennial meetings they've managed to create 1,941 separate felonies. Thank God Texas doesn't have annual legislative sessions. There's no telling what they'd find time to make illegal, then.

A man arrested by the Red River Valley Drug Task Force fled custody in October, and was finally recaptured in mid-December. So what feats of derring-do allowed his escape? He just walked out of the unlocked front entrance while task force officers were booking him into the Hopkins County jail, prompting an expensive, two-month-long multi-agency manhunt.

I'd reported yesterday that then-state representative Jack Stick cosponsored Harold Dutton's HB 715 in 2003 that would have lowered penalties for possession of small amounts of marijuana from a Class B to a Class C misdemeanor, which is the equivalent of a traffic ticket.

I made an error, which is what I get for relying on my memory. I should have doublechecked. The bill that Stick co-authored with Dutton was HB 2316. I confused them because the two were basically presented as companion bills. HB 2316 would have lowered the penalty for possession of small amounts of cocaine, heroin, meth and other hard drugs from a state jail felony to a Class A misdemeanor. That bill would have shifted thousands of inmates convicted of drug possession from state jail facilities down to the county lockup.

(Another bill, HB 2668, which was passed and signed by the Governor, mandated probation for first time drug offenders, but the final version did not lower the penalty category, as the original filed language would have.)

Any Grits reader knows, though, that county jails are full. So the only way that HB 2316 could functionally work would have been to pass HB 715, which would have freed up more than enough county jail space. I discussed here how those two proposals work together along with drug courts and expanded treatment programs to stem the rising incarceration tide without making us less safe. The 79th Legislature faces even more intense overincarceration pressures than did the 78th, so all of these options, of necessity, will be on the table then, too.I apologize for the error regarding Stick's bill sponsorship.

At the bottom of the article we find an issue raised I'd not heard of before: Texas' 2003 drug treatment cuts were apparently so draconian that the feds refused to let Texas keep matching funds we otherwise should have gotten. The closing paragraphs of the article inform us:

"[B]ecause the federal government said the state did not invest enough of its own money, the state might not be able to keep almost $10 million that could be used to help pay for substance abuse programs.

"The state is appealing to the federal government, said Joe Vesowate, the state assistant commissioner for mental health and substance abuse services.

"He also said officials at the Department of State Health Services would ask lawmakers to restore enough funding to substance abuse treatment programs to make sure that there are no problems getting the federal dollars in the future."

That's unbelievably irresponsible. I knew Texas had made deep cuts last session, but eliminating treatment dollars that are used to draw down federal matching funds amounts to cutting off your nose to spite your face. Texans don't pay federal taxes so their money will go to Oklahoma (like our football talent). I'll be searching for more specifics about this matter as the session moves along.

In the meantime, as Grits reported earlier, at least the Texas Senate Criminal Justice Committee appears to want to expand treatment, not cut it more.

On New Year's Day before the Rose Bowl my family will sit down for a meal of ham, black-eyed peas and collard greens, all of which in the South one consumes to ensure good luck in the coming year. Not everybody's menu choices bring luck and happiness, though. Mike Stanfill has created a powerful flash animation piece that recounts the last meal requests of Texas Death Row inmates. In an odd, sort of spooky way, the menu lists juxtaposed with the faces of these executed men humanizes them, makes them each individually real for the viewer, not just another Texas death statistic. Check it out.

Alan Bean from Tulia Friends of Justice let me know that the Amarillo Globe-News revisited the Tulia drug sting scandal (reg. required) in yesterday's paper, walking through the current status of the controversy. As the paper points out, 2004 was a big year in the Tulia case. The article discusses the $6 million settlement, Governor Perry's refusal to give the Panhandle more grant money this year, and the disbarrment proceedings brought by the state bar against ex-Swisher County District Attorney Terry McEachern. Another as-yet-unwritten chapter of the story, the Globe-News pointed out, will finally play out in January with the perjury trial of defrocked undercover cop Tom Coleman in Lubbock.

To read the Globe-News article, you'd think Coleman's trial was the end of the story, but not quite.

Because of the Tulia case and many other scandals involving Byrne grant funded drug task forces in Texas, the Criminal Jurisprudence Committee in the Texas House of Representatives recently recommended abolishing the entire drug task force system in an interim committee report. Now that would be a fitting end to an epic story.

Doug Berman finds the money quote in a Texas Senate Research Center research brief (pdf) analyzing the impact of the U.S. Supreme Court's Blakely ruling on Texas law. That landmark case found that only juries, not judges, could decide that certain enhancements should be applied during sentencing; it opened up to question many thousands of cases nationwide where judges had, by law, performed that role. In all, it's a highly complicated mess the Supreme Court hasn't fixed yet.

I'd said earlier on this blog that Texas' sentencing system was "clean" with regards to Blakely, but then I ran across this Texas Senate Research Center report from October that seemed to imply otherwise. Without reading it, I sent Prof. Berman the link, frankly, in a moment of intellectual cowardice; if Blakely turned out to apply to Texas, I just didn't want to have to be the one to wrap my brain around how! Thanks for bailing me out, Doc!

Bottom line, it mostly doesn't apply to our system but may, a little bit, in a few narrow circumstances. It doesn't sound like we're in for the turmoil they've had in other states or the federal system, though. I finally did read the report, by the way, and should add that Senate Research did a great job. They explained a complex situation quite thoroughly but in an understandable (dare I say readable?) fashion. Check it out. Then if you want more on the topic, comb through Prof. Berman's Sentencing Law and Policy blog for mountains of material on the Blakely case.

The Houston Chronicle had a good article profiling Alison Brock, my new colleague who has undertaken the difficult task of running ACLU of Texas' Prison and Jail Accountability Project. Welcome aboard, Alison, and nice press!

I've argued previously that, if Democrats want to win any statewide races in Texas this decade, they should start by targeting the courts, the way Karl Rove did nearly twenty years ago. That advice becomes more salient than ever if Governor Perry follows through on the reportedly pending and highly politicized appointment of Don Willett, a friend of former Perry Chief of Staff Mike Toomey with little courtroom experience, to the Texas Supreme Court. Even Republicans are talking trash about his relative lack of credentials, albeit so far anonymously. Willett ran George Bush's faith-based initiatives program when he was governor and president. This Houston Chronicle editorial hit all the right points.

Texas state Rep. Harold Dutton, D-Houston, has introduced HB 254, which would lower the penalty in Texas for possession of less than an ounce of pot to a class C misdemeanor, which is the equivalent of a fine-only traffic ticket. Dutton told WOAI News in San Antonio, "We're not going to tie up our courts with this any longer. We'll turn it over to municipal courts and you can pay the fine and go on."

Dutton's proposal would be a huge boon to Texas' overcrowded county jails. If it were to pass, most pot offenders would start to generate local revenue rather than cost the county money. That's the main reason the idea has a chance.

"We need to be smart on Texans pocketbooks, and leave the criminal justice system to more heinous crimes. To give people 180 days in jail for having two seeds of marijuana on their floorboards seems to be a waste of the state's time and money, and a waste of the lives of the people who have to suffer that punishment," Dutton said.

In 2003, Dutton authored similar, surprisingly well-received legislation, HB 715, which he co-sponsored with Rep. Jack Stick, an Austin Republican who was deposed by Democrat Mark Strama in the November election. Hopefully Dutton can find other Republican support for his bill this year; smart on crime or not, it'll have to be a bipartisan effort to succeed. For a discussion of how this proposal fits into the economics of Texas' overincarceration crisis, see this Grits post.

The FDA has approved scientific tests to examine whether the street drug 'ecstasy' is useful in treating severe anxiety among terminally ill cancer patients. MDMA, known in street slang as "ecstasy," is already being tested for use treating post-traumatic stress disorder. In the meantime, scientists want to look for possible medical uses of LSD and psilocybin, the active ingredient in psychadelic mushrooms. It's a good article first published in The Washington Post. Check it out.

Another reminder, if one were necessary, that drug task force scandals aren't just a Texas problem: Sgt. Curtis Sinor, previously a trusted officer in the 14th Judicial District Drug Task Force in Baxter County, Arkansas, recently admitted to stealing more than $8,000 that was budgeted for confidential informant payments and giving it to family members.

Monday, December 27, 2004

While the Houston crime lab's egregious past has become fairly common knowledge, this report recounts how the DPS crime lab in McAllen had to be secretly shut down to fix problems found in an audit earlier this year, and the DNA lab operated by Fort Worth PD was ultimately closed.

The report didn't mention Brandon Moon, who an El Paso district judge recently released after he was falsely convicted based on bad analysis from the DPS crime lab in Lubbock. But it did cite Frances Newton's case; she was given a 120 day reprieve from her death sentence recently to allow retesting of gunpowder residue first examined by the Houston crime lab.

It's got to be clear, now, though, that crime lab problems aren't just Houston problems; there's a crisis in forensic science in Texas, a deep and profound one. (So profound that the report even includes an evaluation of the pros and cons of a death penalty moratorium based on crime lab problems.)

HRO examined several options, some of them gleaned from interim committee reports. Most prominently, they examined the idea of creating a regional system of forensic labs, possibly with a pay as you go system where local government pays for services to finance it. The report says DPS' crime labs, though, which are essentially already regional crime labs, haven't done a good job, so there's no reason to believe that reform will fix the problem.

The other options listed look more promising. Chief among them: the state should spend more money for defendants, many of whom are indigent, to pay for lab work and scientific investigations to refute shoddy state crime lab work. In other words, let the adversarial system flesh out the truth. What a novel concept. Of all the proposals cited by HRO, that's the one most likely to force the system to right itself.

Another proposal: expanding defendants' discovery access to information about crime lab tests, allowing defendants to obtain labs' error rates through discovery and making the information admissible during trial. That might almost finish some of these labs.

Finally HRO noted that crime scene investigators and crime lab workers don't have any particular, special training, and suggested some sort of formal accreditation process for those often civilian workers. Yeah, I'd say it's time to make sure those folks have some minimum training.

All of this could be readily fixed with the proper resources. The money is even available.

DRC Net's Drug War Chronicle has performed the valuable service for some time now of compiling stories about bad cops involved in the drug war from around the country. Lately they mentioned a few Texas stories worthy of note.

In the same issue where they recommended Grits' piece on legislative recommendations to abolish Texas drug task forces, DRC Net told the story of an employee of a private drug testing firm in San Antonio that evaluated urinalyses for San Antonio probationers. Given some alone time with a female probationer, the FBI alleges that Adrian Barrientos "asked the woman if her test would come back positive, and when she replied affirmatively, he told her he would falsify the results in exchange for sex."

Nice guy. Probation should be an opportunity to turn your life around, not an opportunity for assholes to prey on you. Too often, though, it's more the latter than the former.

"In Central Texas, former McLennan County (Waco) Deputy Constable Kevin Scott Baker was on trial last week on federal charges that he was a marijuana pusher. Baker, 38, is charged with distributing less than 50 kilos of the weed, conspiracy to distribute, and, just for good measure, aiding and abetting marijuana distribution, the Waco Herald-Tribune reported. Baker's extracurricular activities came to light after a police informant -- a crack-using woman who has since died of Hepatitis C -- tipped Department of Public Safety troopers to his operation. The woman, Betty Mahall, taped conversations with Baker in which she asked for some "weed" and Baker replied nervously that she should not speak so openly about drug deals on a cell phone. DPS officers also taped Baker meeting Mahall at a Bellmead motel, where he was arrested after consummating a pot deal with Mahall. Baker says he was set up. The trial continues."

Grits can add to their account that Baker was ultimately convicted (no longer free).

Another item from the same issue has supervisors wondering how marijuana keeps getting into the jail:

"And down in the Rio Grande Valley, a Cameron County, Texas, assistant jail supervisor is under investigation for allegedly providing marijuana to inmates, the Brownsville Herald reported. Orlando Gutierrez, 25, was suspended without pay Tuesday for violating other jail policies while the sheriff's office investigates how inmates at the Carrizalez-Rucker Detention Center scored their weed. A drug-sniffing dog alerted on Gutierrez' vehicle, but no drugs were found. Gutierrez is the guilty party, said Capt. Rumaldo Rodriguez. 'We are getting deniability from the officer, but we are working on that,' he said."

One wonders if they were getting merely denials, or actual "deniability," which might imply Gutierrez could back up his denial. A report a few days later said Texas DPS was planning to give Gutierrez a lie detector test, but a search at the Brownsville Herald, where the story broke, found nothing reported since then.

Looking back, DRC Net about a month ago actually spread around my two-part Profile of a Gypsy Cop in the same venue, so let me take this opportunity to offer them a belated thank you for that, and for helping work Grits' side of the street on the bad cops question -- there's too much going on in Texas to catch it all, even if I was staffed to do it. Plus it's more fun to look forward to the weekly Drug War Chronicle, to which you can subscribe for free by going here.

Jordan Smith reports in the Austin Chronicle that a Travis County jury found earlier this month for 16 plaintiffs who'd accused the Texas Department of Public Safety of promoting pre-selected cronies to 11 new captains positions created in 2001, ignoring test scores and manipulating oral scores to get the people they wanted. The jury found that "DPS higher-ups rigged a 2001 promotional exam in order to promote a group of favored good ol' boys, and in the process engaged in age, gender, and race discrimination and retaliation against several officers who had the temerity to complain about the rigged exam," Smith reported.

Jordan did a great job with the article, so go there for details. Her piece missed a crucial element, though, that explains the bigger picture, or part of it. Those captain's positions were created to oversee the Tulia-style Byrne-grant funded drug task forces, which were formally placed under DPS' authority in January 2002. The Criminal Jurisprudence Committee of the Texas House of Representatives, led by Chairman Terry Keel, R-Austin, recently recommended that the task force system be abolished because DPS' new oversight role has been unsuccessful.

That's right, the 11 disputed DPS captain's positions, those officers who were promoted over their apparently more qualified competition, were supposed to provide oversight to the ridiculously scandal-ridden Texas drug task force system! But instead of letting women and folks with the highest test scores have a fair shake, the jury found that the DPS administration wanted its own hand-selected people to get the new gigs (there aren't that many captain's positions, so the creation of 11 new ones was a big deal as far as promotion opportunities at that level in the bureaucracy).

I don't know the backstory here, and haven't looked personally at any of the court documents nor spoken to a single source -- again, go to Jordan. But, purely speculating, there's a lot of task-force-related politicking at play here, and it's interesting to contemplate what it all might mean. Most generously, perhaps, because operating these scandal-ridden task forces required special skills, experience, or even a trust level with agency management, DPS officials wanted folks who they knew could handle the job.

Or, perhaps some applicants with the highest scores had histories of misconduct or other problems in their personal background that would make them bad candidates to run task forces, which have tended to corrupt their administrators. State civil service laws don't allow administrators to account for misconduct in evaluating relative promotion test scores. This blog doesn't have the resources, but an interesting exercise would be to file open records requests for the personnel files and for closed Internal Affairs investigations for both the 16 plaintiffs and the 11 officers who were promoted to captain. If many of the 16 had significant records of misconduct, maybe there was a reason they weren't promoted. Or, if many of the 11 who were graced with the captain's insignia turn out to have bad records, it might tell you DPS just wanted these guys, regardless of their past.

On the other hand, it could also be exactly what the plaintiffs allege, a case of straight up discrimination and good old boy-ism. If that's the case, it implies DPS was looking for captains to keep up the status quo, who wouldn't rock the boat, who would go along to get along. In practice, Deputy Commander Patrick O'Burke, to whom those captains report, hasn't given them the opportunity, as he's pressed for mergers and procedural reforms that have been met with task force resistance. But O'Burke didn't have that job yet, and anyway, the 11 hires would have been DPS Colonel Thomas A. Davis' call; he's the top dog over there. It would be ironic if part of the reason DPS can't get the task forces under control is that they'd illegally hired folks with the wrong temperament for an oversight job.

All we know from this jury verdict is that DPS wanted these 11 guys to run Texas' Byrne-funded drug task forces, and that administrators overlooked the 16 plaintiffs, apparently illegally. What I'd be fascinated to learn is "Why?".

Sunday, December 26, 2004

To his great credit, Texas state Sen. Jon Lindsay, R-Houston, last week in Austin filed SB 127, which would help prevent the spread of communicable diseases like AIDS and Hepatitis C by allowing local governments to implement anonymous syringe exchange programs.

Dead addicts don't recover. Sharing dirty needles has become the single most common method of transmitting HIV and Hep C among injection drug users. Far from encouraging drug activity, syringe exchange offers drug treatment providers and medical professionals access to a hard-to-reach population that otherwise tends to avoid interaction with public health officials. Too often, though, society prioritizes enforcing the drug ban over helping drug-addicted indviduals, one by one, up out of the mire.

Syringe access programs encourage personal responsibility among drug users, asking them to be accountable for their own health and that of their friends. Sometimes that simple act of self preservation can turn out to be a first step toward confronting, maybe even resolving one's personal drug abuse crisis. At least it gives them an access point to get help.

It's not surprising Sen. Lindsay, a former Harris County Judge (that's the head of county government, analogous to the mayor of a city, not a courtroom judge) is looking for answers. But even when evidence clearly supports the idea, as in the case of needle exchange, it takes courage to file a bill that tacks against the prevailing drug war winds, so the good senator deserves great credit for the effort. He filed similar legislation in the 78th session, but this bill seems more tightly drafted and well-thought through. Hopefully that means he's really serious about passing it.

Growing costs for public health obligations in big cities threaten municipal budgets everywhere in the country. For the most part, emergency rooms in public hospitals cannot turn away sick patients, even if they don't have insurance. What's more, to the extent that injection drug users are engaged in criminal activity that might wind them up in jail, often the public winds up paying for their healthcare costs anyway, as Grits reported last week about Wichita Falls. Urban areas like Harris County with extremely expensive public hospital districts are searching for any way they can, not even to lower public health costs, but just to lower the rate of spending increase.

Syringe exchange programs can help stave off long-term costs that ultimately fall on local taxpayers. According to Kate Ksobiech of the Wisconsin based Center for AIDS Intervention Research, "Both establishing and maintaining NEPs can lead to substantial economic benefit to society via cost savings in long-term health care for uninsured/underinsured HIV+ individuals (see, for example, Holtgrave et al. [3])."

A decade ago, syringe exchange programs were pretty controversial, but it's hard to argue against success. They've proven effective at preventing the spread of disease and have been implemented nearly all over the country. Even Arnold Schwarzenegger signed a California bill earlier this year allowing pharmacists to sell up to ten "points" to addicts over the counter without a prescription. Syringe exchange has been endorsed by the American Medical Association, the American Bar Association, the American Public Health Association, the U.S. Conference of Mayors, the National Commission on AIDS and the Centers for Disease Control.

Maybe the time is ripe for Sen. Lindsay's improved bill to pass next year in Texas, too.

First, in the series "Profile of a Gypsy Cop," in Part II, I declared that I'd seen no evidence that any of the officers involved in the Kleberg County-based drug task force described were prosecuted. However, I had not traveled to Kingsville to search the ten-year-old court records. According to a source who is personally familiar with the case, Commander Bywaters was convicted of a minor charge and given five months probation. It was correct, though, that neither the officer described in the story who destroyed evidence in Bywaters' criminal investigation, nor the one who lied to the court about marijuana missing from the evidence locker, were prosecuted for their offenses. I sincerely regret the error. However, five months probation for a drug task force commander stealing cocaine from the evidence locker to support his habit seems like a slap on the wrist, at best, doesn't it?

Also, Judge John Creuzot who operates the Dallas drug court confirmed via email that the low recidivism rates attributed to his operation in the Senate Criminal Justice Committee Interim Report, reported in this post, are accurate. Another source with knowledge of the Dallas court had questioned them. Judge Creuzot distinguished between drug courts and "drug treatment courts," which he said had lower recidivism rates. I'll admit I don't fully understand the distinction he's making, but sometime after the new year I want to go to Dallas to take a look for myself. The Judge disputed my comments questioning the viability of forced treatment -- he insisted that it works very well for addicts to hard drugs, and that adequate protocols exist to distinguish addicts from recreational or occasional users who wouldn't benefit from drug treatment. I appreciate his clarification. I still don't think forced treatment is useful for pot smokers or the non-addicted, so I'm glad the experts are parsing out how to make those case-by-case judgments.

Next, another little birdie told me I got it nearly but not quite right regarding the Harris County Sheriff's participation in Harris County's Byrne grant-funded narcotics task force. The sheriff pulled all his troops off the task force last year, which is operated by the Baytown Police Department. An anonymous source who appears to have direct knowledge of the situation emailed to say that, while the sheriff did pull all his staff, the Harris County Sheriff was still formally participating in the task force, if only as a function of the sheriff's signature on the operating agreement. The anonymous source said that the dozen officers were pulled because of funding disagreements, because the task force had become a "dysfunctional family," and because task force commander Roger Clifford of the Baytown PD is an "asshole." The Sheriff could dissolve the task force, the source pointed out, simply by formally pulling even that on-paper support. (That's correct and I should have caught it; by state rule, the sheriff and county commissioners court must both approve for a county to participate in a Byrne-funded task force.) He should; the bunch at Baytown PD are modern Keystone Cops -- another Tulia lawsuit waiting to happen.

By the way, what do the above three corrections and clarifications have in common? They all stem from insiders in Texas' criminal justice system reading Grits for Breakfast and helping make sure I get what I'm telling you right. That's pretty damn cool. Thanks, folks!

Grits was pleased to receive several recent positive references in the blogosphere, by the way, which I'll mention since I'm still in lazy, post-Christmas-Sunday-morning blog mode. Pete at Drug War Rant honors this blog with the comment that Grits brings the 'very best' coverage of Texas drug war issues. The weekly Drug War Chronicle and Drug Sense Weekly both linked to Grits' post on the Texas House Criminal Jurisprudence Committee's recommendation to dissolve Texas' drug task force system. (I don't understand, it, but that story STILL hasn't been picked up by the mainstream press; it's a big deal. "Don't they read my blog?," he whined.) In between predictions about Supreme Court's publication schedule, Professor Doug Berman said nice things about Grits' "great Texas coverage" of sentencing issues.

I mentioned that Charles Kuffner nominated Grits for "Best Single Issue Blog," in Wampum's Best of the Left Koufax Awards (nominations closed), the "single" issue being the Texas justice system. (I find the single issue moniker completely understandable, but kind of funny; often it feels like I'm writing on way too many topics!) Since Wampum suggested self-submissions, especially in best post or best series categories, I also forwarded them a bunch of my own articles on drug task forces as a nomination for best series. Except that I was still writing it when nominations closed, I wish I'd nominated the recent biometrics series, which is less sprawling, more focused, and reads more like a single story line. If you haven't followed the political war over Tulia, Hearne and these other drug war catastrophes in Texas these last few years, it's hard, I've been told repeatedly, to wrap your brain around what some of this drug task force coverage really means.

But easily the compliment that means the most to me came from Libby at Last One Speaks, who took time out of her busy moving schedule on Christmas to plug Grits and announce that the entire last week of posts were a "must read"! Her advice to "start at the top and keep scrolling" warms my heart. That's what I really want from this blog, after all, is for people to read it. By my count, I've written nearly 70,000 words on this blog since it began in October, and it sure ain't for my health! A month or so ago, Cursor.org linked to a little funny post I did, and generated hundreds of extra hits over the course of the week. Hardly any of those clicked off the short post to read other Grits fare, though, and it didn't really result in many longer-term readers. That taught me that traffic isn't really the best way to judge the blog's effectiveness. By contrast, when folks come here from Last One Speaks, Drug War Rant, D'Alliance, Loretta Nall's blog, Vice Squad, Talk Left, Sentencing Law and Policy blog, and, interestingly, Underneath Their Robes, they tend to stay for a while and read a lot more than just the page they came to. And as the above clarifications show, thankfully some of the right people are reading this blog, even if a lot of people aren't, yet. (Let me take this opportunity to say "howdy" to my regular readers at the Texas Department of Public Safety.)

We had a fine Christmas at the Grits household, with my daughter and the in-laws over for dinner yesterday. I'm the house cook, so that means Christmas was a big cooking day for me, though lighter than some past years because my side of the family wasn't visiting -- we had a fabulous, slow cooked roast and vegetables that sat braising in the oven for four hours, plus homemade cranberry sauce, green beans with ham, pumpkin pie (crust from scratch; filling started with a whole pumpkin), and these Christmassy nut crescent cookies that are covered on the outside with powdered sugar. A lot of that's left over today, so this lazy post will likely be followed by some lazy munching and then some football watching. I've got a couple of other items that need discussing, but don't know if I'll get to them today. Thanks for stopping by, though, and happy holidays.

Friday, December 24, 2004

Lining up behind Mayor Bill White, the Houston Police Officers Union now backs the idea of red light cameras, wrote their president Hans Marticiuc in a Houston Chronicle op ed leading up to this week's city council vote.

Harris County state representative Gary Elkins filed HB 259 on Tuesday to disallow using the cameras for traffic enforcement. (Posting about 14 hours after Grits reported it yesterday, the Houston Chronicle covered the bill here and in this morning's paper.)

The union's stance represents a slight shift in the political terrain from the last time this battle was fought at the Texas Legislature. In 2003, the Combined Law Enforcement Associations of Texas (the state's largest association of police unions) opposed the idea, as expressed in H.B. 901, preferring that municipalities simply employ more (presumably dues-paying) officers to enforce traffic laws. Marticuc, though, cites a Houston officer shortage and argues that cameras would free up Houston police to enforce other laws.

Plus, a little butt kissing for the boss never hurts. After all, Marticiuc knows the city can't realistically afford to hire that many more officers, anyway, and if Mayor White were to win a second term, he'd still be around to negotiate the union's next meet and confer contract in 2009.

That said, the Houston Mayor already sounds a little whiny delivering that message. He told the Chronicle, "If the people in Austin don't want us to use technology, then we'd be happy if the state gave us more money to hire more officers." Hmmmm. The "give us money" plea reveals White's real motive for the red light cameras -- he thinks they'll be a cash cow for the city, and he might be right. That's not a reason for the Legislature to do it, though. It's White's job to hire enough cops to enforce the laws.

At the hearings on this bill last year, testimony was given by experts that the best way to reduce red light collisions -- short of introducing traffic circles to high-accident intersections -- is to install traffic lights with a counter that counts down seconds until it turns to the next color. That way, drivers aren't guessing when the light will switch, and only those willfully, not carelessly, running red lights typically still do it.

Yesterday, reports the Houston Chronicle, Bush nominated the same batch of Big Government Conservatives to the federal bench that were rejected by Senate Democrats over the past year -- most egregiously, activist Texas judge and failed Fifth Circuit nominee Priscilla Owen.

John Cornyn's glowing endorsement of Owen in the Chronicle speaks poorly of the senator, who served with Owen on the Texas Supreme Court and should know better. Alberto Gonzales does. Frankly, Cornyn would make a much better judge on the Fifth Circuit than Owen would -- her lawyer's credentials are spotty at best, and her judge's credentials are odiouslytarnished.

UPDATE: The New York Times coverage on this is here. They report that 12 of Bush's new nominations have been previously blocked.

Nearly as soon as the Houston City Council approved installing red light cameras for giving tickets based on photos at city intersections, Harris County state representative Gary Elkins filed HB 259, which would repeal the city's authority to give "civil fines" for traffic infractions.

Houston Mayor Bill White says he's concerned with privacy, but offered the trite retort that no one has the right to run a red light. Neither, though, should the state have the right to accuse anyone of violating the law if they cannot face their accuser. Houston's experience with the EZ-Pass system shows that just because a picture has been taken doesn't mean that the person sent a ticket did anything wrong. Worse, White's dismissive comments ignore how the cameras would fit with other Big-Brotherish technologies like the biometric facial recognition systems the Texas Department of Public Safety wants to purchase.

Elkins prepared a press release when he filed the bill on Tuesday, but it has not been posted to his official state website. The temptation for cities to rely on red light cameras to generate revenue is too great, he said. "In almost every city where red light cameras have been allowed there has been a manipulation of traffic signals to increase tickets by reducing the duration of yellow lights," Elkins cautioned. "It really comes down to money."

"Cameras can't make judgment calls," Elkins continued. "They can't account for a driver trying to avoid an accident or for wet pavement. In other states there have been cases where vehicles involved in funeral processions were all mailed tickets even though police officers escorted the cars through red lights. "

In 2003, Texas legislators overwhelmingly voted down this idea in the form of H.B. 901, with 103 of 150 House members registering votes against giving red light tickets using cameras. Gary Elkins was a floor leader in that conflict, along with Rep. David Swinford from Dumas. After the bill was defeated, Rep. Harper-Brown, though, added sneaky, vague language to another bill allowing cities to use cameras for mulcting civil fines from drivers instead of criminal penalties. That language was approved without members knowing what they were voting on.

It will be fascinating to see whether that 103-vote majority bloc holds up -- it appears to be large enough to stand even if some members of the Houston delegation changed their votes, which would mean the City of Houston is wasting its money on the new equipment.

Wednesday, December 22, 2004

The reasons are as varied as the people proposing the idea, but mostly it has to do with law enforcement. After all, if the only issue were identity authentification to get a Texas drivers license, just the thumbprint would do. Bottom line, police already have access to fingerprints from everyone they arrest and book into jail. They want fingerprints from people who haven't been arrested to match when they're investigating crimes. Right now, thumprints given for your drivers license application can't be used for that purpose in Texas.

For others, fingerprint biometrics will be the lynchpin for the movement toward a national ID card. In a fascinating item posted this morning entitled "Hot Fingerprint Trends in 2005," Jason Tan relays this prediction:

"'One major trend in 2005 will be the use of fingerprint technology in combination with national identity cards,' stated Christer Bergman, chief executive officer and president of Precise Biometrics, a Sweden-based provider of biometrics security solutions using fingerprint authentication.

“'Here, we are seeing more and more projects asking for Match-on-Card -- the technology where fingerprint templates are stored on smartcards and smartcard processors are used for comparison. Hence, fingerprint templates never leave the smartcards."

Right now the thumbprint image that drivers give isn't on the magnetic strip on the back of a Texas drivers license, so those sort of uses would require changes in Texas law, but that's where some "Big Government Conservatives" want to go with the idea.

Tan's article also shows how the biometrics industry's own push for new markets drives many of these new government initiatives:

"The main market remains government projects [said Bergman]. 'We see both the health-care and financial sectors picking up as mandatory regulations are implemented.'

Echoing his view, [Czech biometric company sales manager Karl] Audaert added that Thailand, Hong Kong, Malaysia and Singapore are among the Asian countries that have adopted biometrics in passports and national identity cards or have plans to do so soon.

“The global driver for these projects is fear of terrorism and identity theft. Technological challenges include pushing for wider deployment, while remaining easy-to-use, secure and reliable,” he explained.

Where does it all lead? Tan quoted Audert describing "MyKad--the Malaysian identity card, which incorporates features such as fingerprint biometrics and medical history, while serving as a driving license, ATM and electronic purse. The government plans to use it even as a travel document to replace passports for border transit among neighboring countries.

"It is compulsory for citizens above 12 years old to have a MyKad by end of this year; everyone will, therefore, be carrying a smartcard with them. This presents huge opportunities to develop more applications, added Audaert."

Now, just because Malaysia created such a card doesn't mean it'd be a good idea here. As my mother would have said, God rest her soul, "If Malaysia ran to the edge of a cliff and jumped off, would you jump off too?" But that's the kind of sweeping promises vendors are making to the Department of Public Safety and other state officials backing the biometrics push.

These pie in the sky fantasies ignore grave risks -- if my credit card number is stolen, I can get it changed with some trouble. But if someone figures out how to fake my fingerprint or my iris scan to access my credit, my bank account, medical data or other personal information, how can anyone ever return what's been taken from me? At the University of Texas last year, hackers stole 55,000 social security numbers from the university's computer system. (The university, like many, used social security numbers as a student ID number, but now is phasing them out.) So what if students' fingerprints or iris scans had been stolen? If biometrics become a standard form of ID that can unlock things like access to bank accounts, public benefits or even the ballot box, they become just another piece of valuable data waiting for a thief to steal.

Here's an issue the Texas House Defense Affairs Committee didn't address in their recommendation (pdf) that the state gather biometric facial recognition data on applicants for drivers licenses and ID cards: How will the machines work on veiled women or others wearing religious headgear?

The DPS Department of Motor Vehicles in 2003 recognized religious headgear as normal attire for drivers license photos in a policy memo, according to a study (pdf) by the Council of American-Islamic Relations on "Religious Accomodation in Drivers License Photographs," via the Niqabi Paralegal, which has been covering the issue a lot. Texas law is silent, says the study, on the question of whether face veils may be worn in drivers license photos. (Three states, all states with large Amish and/or Mennonite populations, allow issuance of licenses without photos.)

So, in order for the biometrics to work on everyone, the Texas Legislature would have to revise the state's previously tolerant policies regarding religious headgear, possibly banning license photos of veiled women. Do that, though, and very quickly the biometrics proposal will come to look like it's targeting Muslims. That perception makes the issue politically sticky, since Texas Muslims have historically constituted a mostly Republican constituency, so the party in power may not want to take such a radical approach aimed at their own voters.
See recent Grits coverage on this issue: "Biometrics Blues," Stanzas One, Two and Three, What Do Fallujah and Texas Have in Common?, Whither Texas on Biometrics After Intelligence Bill?, and No Smiling.

Tuesday, December 21, 2004

Lauri at Tres Chicas notes how strange it seemed that the Plainview (TX) Herald'sfarewell ode to outgoing Panhandle prosecutor Terry McEachern included no reference to the two incidents which brought him the most fame: his role in the infamous Tulia drug scandals, and his upcoming disciplinary hearing before the state bar stemming from his arrest in New Mexico last year on a DUI charge.

If it seems odd that a New York City blog pays close attention to what's going on in rural Texas, it would be, if the blogger weren't former ACLU of Texas researcher and activist Lauri Apple. Lauri helped me prepare a May 2004 report entitled Flawed Enforcement (pdf), analyzing racial profiling data from drug task force traffic interdiction programs on behalf of ACLU of Texas. She also directed ACLU of Texas' statewide banned books project this year, which is a monumental research task. Now, though we're sorry to see her go, Lauri's off to law school in New York City, the same Yeshiva law school that hosts the Innocence Project, now that I think of it, so it's fitting that I'd mention her when they just had a big Texas victory. Good luck, Lauri!

As legislators in Austin push to start gathering biometric data on Texas drivers and ID card applicants, Congress last week approved language in the so-called "intelligence reform" bill that wouldallow the Bush Administration to require gathering biometric data on all drivers nationally through an administrative decision within the next 18 months. It passed with little opposition, though as usual, Texas Rep. Ron Paul played Don Quixote to Tom DeLay's Friston, unsuccessfully opposing the provision.

The bill mandates the federal Departments of Transportation and Homeland Security to create a de factonational ID card, complete with swipable stripe for easy access to your data. With a hat tip to Scott at Freedom is Slavery for the specifics, here's relevant the language from the bill:

(2) MINIMUM STANDARDS.—Not later than 18 months after the date of enactment of this Act, the Secretary of Transportation, in consultation with the Secretary of Homeland Security, shall by regulation, establish minimum standards for driver’s licenses or personal identification cards issued by a State for use by Federal agencies for identification purposes that shall include—

(A) standards for documentation required as proof of identity of an applicant for a driver’s license or personal identification card;(B) standards for the verifiability of documents used to obtain a driver’s license or personal identification card;(C) standards for the processing of applications for driver’s licenses and personal identification cards to prevent fraud;(D) standards for information to be included on each driver’s license or personal identification card, including— (i) the person’s full legal name; (ii) the person’s date of birth; (iii) the person’s gender; (iv) the person’s driver’s license or personal identification card number; (v) a digital photograph of the person; (vi) the person’s address of principal residence; and (vii) the person’s signature;(E) standards for common machine-readable identity information to be included on each driver’s license or personal identification card, including defined minimum data elements;(F) security standards to ensure that driver’s licenses and personal identification cards are— (i) resistant to tampering, alteration, or counterfeiting; and (ii) capable of accommodating and ensuring the security of a digital photograph or other unique identifier; and(G) a requirement that a State confiscate a driver’s license or personal identification card if any component or security feature of the license or identification card is compromised.

The possibility for government collection of biometric data from average citizens stems from the open ended language allowing DHS

DoT, if the Secretary desires, to mandate "standards" for verifiability, documentation, and information regarding the license, plus allowing them to collect any "other unique identifier" as part of the minimum requirements for states to ensure security. Though the language is subtle, Dr. James Jay Caranfo told the Washington Post the "provisions in the bill [support] the development of biometric technologies and the integration of biometrics (unique physical and behavioral characteristics like fingerprints and handwriting) into security systems."So, how does this federal legislation affect plans by the Texas Department of Public Safety and the House Defense Affairs Committee to require biometric facial recognition data on Texas drivers license applications starting next year? It likely means their efforts are premature. If the feds must come out with new national standards for drivers licenses in just 18 months, it would be too early for Texas to make those decision now. It could mean collecting data or designing new computer systems that may not mesh with what the feds ultimately require.

For that reason, the passage of the national intelligence reform bill argues strongly that legislators should delay any consideration of gathering new biometric data from drivers license applicants until the 80th Texas Legislature in 2007.

Great news! Another innocent Texan has been freed from prison. Thanks to the efforts of Barry Scheck and the Innocence Project at the Yeshiva University law school, Brandon Moon walked free after DNA evidence "conclusively excluded" him as a suspect in the rape for which he was convicted. The El Paso District Attorney -- a different DA than originally convicted him -- did not contest Moon's exoneration. The case calls into question key findings of the Texas Department of Public Safety crime lab in Lubock that originally helped convict Mr. Moon. DPS test results were the only scientific evidence presented to the jury.

Sunday, December 19, 2004

To see the absurd impact of "tough on crime" policies on government's bottom-line finances, look no further than the following scenario rising up out of Wichita Falls, TX:In mid-November, a 32-year old Wichita Falls man with no prior convictions received three concurrent 99-year sentences for meth manufacture in a well-publicized case. As he entered prison, Don Horton left behind children who now must be cared for by their grandparents. His mother testified at sentencing she thought her son could be rehabilitated, that his addiction had simply overcome him."You all need to realize that it can happen to anybody," she said.Though he's young and healthy enough to work for a living, pay taxes and still contribute to society, taxpayers instead will finance housing, board, clothing, sundries, and, at increasingly greater cost, healthcare for this non-violent offender, possibly for the rest of his life. Inside prison, his every action will be under state control, so the values that instill personal responsibility, indeed that might have prevented his descent into addiction and drug dealing in the first place, will not be taught there. Similarly, he will not be around to teach any lessons he's learned from all this to his children. Prison is the ultimate nanny state, and the cost of incarceration isn't cheap -- in Texas, it's around $16,000 per year and growing. Texas prisons are already overflowing right now.

One might think 99-year sentences for non-violent offenders with no prior convictions already is harsh enough, but two weeks later state Sen. Craig Estes from Wichita Falls proposed new legislation increasing penalties further, not just for dealers but for low-level offenders caught with less than a gram of meth. Estes announced he was "declaring war" on methamphetamines. (Wasn't that war already declared?) "My proposed legislation is much tougher and would redefine these offenses as third degree felonies punishable by prison sentences served in the state penitentiary," Estes said. No word on how he intends to pay for it, but that's an expensive proposition.

Maybe just as expensive, and a lot more complicated, another Estes bill proposes a mandatory 15-year minimum sentence for anyone caught cooking meth in the same dwelling as a minor. Since most folks charged with that crime will be, like Horton, parents who are meth addicts, many of those children almost assuredly will become wards of the state. Again, though, the bill's current language includes no mention of new funding sources for Child Protective Services or the state foster care program to pay for those kids' care, much less to cover Texas' matching share of their Medicaid costs. (Rep. Leo Berman filed similar legislation in the House, which suffers from similar omissions.)

So how to pay for all this? Reportedly Estes would like to "modify the business franchise tax to get more education funding," and also favors an "increase and broadening of the sales tax," but those reforms wouldn't cover what's needed to pay for court-mandated increases in education spending. The certainly won't cover the cost of building a new prison, which had been estimated to run anywhere from $350-$500 million.

Because Texas already is on track to exceed its prison capacity before the 80th Legislature meets in 2007, the only way to implement Estes' proposals would be to finance a new prison costing in the low to mid-nine figures. When I mentioned that amount that to an insider in Texas' school finance litigation, he literally laughed out loud and said it was "impossible" the 79th Legislature would spend that much new money on criminal justice. In any event, it seems highly unlikely.

Meanwhile, the drive to incarcerate as many meth users as possible is actually bankrupting Estes' hometown criminal justice system in Wichita Falls, forcing recent requests for an emergency infusion of funds. Providing medical and dental care for meth users has been especially costly, local TV station KFDX reported:

"The Sheriff says the department needs more money for the same ongoing problem, A jail population that`s often higher than expected. One specific inmate related-cost has really been eating up county funds lately, medical care.

"More bodies behind bars often means more visits to the doctor, which the county has to pay for. Officials say a major reason for the higher medical costs, Meth....

"Wichita County Judge Woody Gossom says, "People who have drug problems, especially the meth problems, have severe medical costs. It`s our responsibility to deal with them if they`re in our care."

"'A lot of these inmates are coming to jail with much more serious illnesses.' says drug counselor Adam Collier. He says frequent meth users are at a higher risk for kidney, liver, lung and other problems. Adam Collier with the Treatment Center says, 'The biggest thing with meth users is teeth. I see it every day, it attacks the teeth. People`s teeth fall out.'"

So, Sen. Estes would arrest more meth users, who the state can't afford to incarcerate, and while they await trial, the county must pay for their quite-expensive health and dental care, which it can't afford, either. (I don't know about you, but the government isn't paying for MY health and dental care.)

It really does seem sometimes like the concept of limited government has been thrown out the window by today's Republican Party -- such proposals can only be described as "Big Government Conservatism," and a particularly unrealistic brand at that. Neither state nor local government can afford to pay for Texas' current incarceration policies, but that doesn't seem to stop the biennial flood of politicized tough-on-crime proposals for more of the same.

I retain my hope that the relevant criminal justice committee chairs in both chambers at the Texas Legislature (assuming they don't change next spring) today fundamentally understand the fiscal dilemma facing the state regarding extended incarceration for drug offenses. With luck, they'll begin next year to enact smarter policies. But they obviously will need to spend a lot of time educating their colleagues.

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